Constitutional Law: The Religion Clauses, Second Edition

Abstract

This book provides a theoretical framework for conceptualizing and evaluating the Supreme Court’s decisionmaking under the Religion Clauses of the First Amendment. It discusses the original understanding, offers a brief history of American religious liberty, and identifies a variety of embedded and evolving constitutional values that can be seen to influence the Court’s constitutional doctrine. These values include religious equality and voluntarism; the protection of religious identity; the protection of religion from governmental contamination and of government from improper religious involvement; and the preservation of traditional governmental practices. Using these values to construct a framework for analysis, the book goes on to concisely explain and evaluate all of the major facets of the Court’s decisionmaking in this area, ranging from the definition of “religion” and other general questions to the many and diverse strands of the Court’s specific doctrine under the Free Exercise and Establishment Clauses.

In this SSRN paper, I reproduce the table of contents and the final chapter of the book. In this final chapter, I summarize some of the book’s basic themes and conclusions, and I suggest that the Court’s contemporary decisionmaking is increasingly driven by the value of religious equality, understood in a strictly formal sense, along with the values of judicial restraint and federalism. I critique the Court’s selective emphasis on these values, which comes at the expense of other and competing values that the Religion Clauses can be understood to promote.

Keywords: Constitutional Law, Constitutional Interpretation, First Amendment, Establishment Clause, Free Exercise Clause, Religious Liberty

JEL Classification: K00, K10, K19, K30, K39